The U.S. Court of Appeals for the Sixth Circuit's recent decision in Doe v. Miami University, No. 17-3396, 2018 WL 797451 (6th Cir. Feb. 9, 2018), provides both comfort and caution for universities facing claims of discrimination or bias in the conduct of their disciplinary proceedings relating to sexual misconduct.
The comfort comes from the Sixth Circuit’s application of the traditional pleading standard to Title IX claims—setting up a distinct split with the Second Circuit, which recently lowered a plaintiff’s burden for alleging claims of gender discrimination against a university under Title IX.
The caution, however, comes from the balance of the court’s opinion regarding claims under Title IX and federal and state constitutions challenging the outcomes of the hearing process. The court’s analysis made clear that plaintiffs can plead cognizable claims against a university for failing to have a scrupulously unbiased process for investigating and adjudicating allegations of sexual misconduct on campus.
The Doe v. Miami University Lawsuit
Plaintiff John Doe, a male student at Miami University in Ohio, was found responsible for sexual misconduct against a female university student. Doe then filed suit against the University and several individual defendants, including the members of the disciplinary panel, alleging violations of Title IX and his constitutional rights to due process and equal protection. The U.S. District Court for the Southern District of Ohio granted the University’s motion to dismiss, and Doe appealed to the Sixth Circuit—which reversed in part and reinstated some of his claims.
The Sixth Circuit Splits with the Second Circuit’s Ruling in Doe v. Columbia
The Sixth Circuit’s decision is most notable for its refusal to adopt the Second Circuit’s ruling in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), a case that addressed similar causes of action by a male student the university found responsible for sexual misconduct. Doe v. Miami University thus creates a split between the circuits on the issue of the proper standard for pleading claims under Title IX.
In Doe v. Columbia University, the Second Circuit found that Title IX discrimination claims were entitled to a temporary presumption reducing the facts needed to plead discriminatory intent, much like the modified pleading standard it applies in Title VII employment-discrimination cases.1 To that end, the Second Circuit held that a plaintiff under Title IX must only plead a “minimal plausible inference” of discriminatory intent to survive a motion to dismiss.2 The Second Circuit opined that the modified pleading standard reduces the facts needed to be pled under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which require a plaintiff to plead specific facts sufficient to support a plausible inference that a defendant is liable under the claim asserted.3 Plainly put, the Second Circuit’s ruling in Columbia makes it easier for a student disciplined by his or her university for sexual misconduct to bring claims of gender discrimination against the university under Title IX.
In Miami Unive6rsity, the Sixth Circuit expressly refused to adopt this approach.4 Because it had previously declined to modify the pleading standard under Title VII discrimination claims, the Sixth Circuit likewise refused to modify the pleading standard under Title IX. So, in the Sixth Circuit, a Title IX plaintiff must satisfy the more stringent Twombly/Iqbal standard, i.e., the claim that a university engaged in intentional gender discrimination must be “plausible on its face” based on the facts alleged in the complaint, not merely have “minimal plausible inference.”
The Sixth Circuit’s Application of the Pleading Standard to Title IX Claims
The Sixth Circuit then applied the traditional Twombly/Iqubal pleading standard to Doe’s gender bias claims against the university, which included claims of (i) hostile environment; (ii) deliberate indifference; and (iii) erroneous outcome. The Sixth Circuit ultimately agreed with the district court that Doe had failed to meet his pleading burden on the first two theories of liability of hostile environment and deliberate indifference, but found that the plaintiff had sufficiently alleged a claim for erroneous outcome, and thus reversed the dismissal on that ground. The court’s analysis on these issues is instructive.
Hostile Environment Claims Brought by Disciplined Students Must Plead More Than Gender Bias in Disciplinary Proceedings
Although the Sixth Circuit noted that a hostile-environment claim under Title IX had never been recognized in a case brought by a student disciplined for sexual misconduct, it determined that such a claim may be viable if sufficiently pled.5 The court explained that in order to bring such claim under Title IX, a plaintiff must allege that his or her educational experience was “permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive [so as] to alter the conditions” of the plaintiff’s educational environment. However, the Sixth Circuit affirmed the lower court’s dismissal of the claim here, because the plaintiff’s vague allegations of gender bias in the University’s sexual assault disciplinary process were insufficient to sustain his claim that his educational experience was “permeated” with discrimination.
Deliberate Indifference Claims Under Title IX Require a Pleading of Severe and Pervasive Sexual Harassment by an Institution
As for claims of deliberate indifference under Title IX, the Sixth Circuit held that to support such a claim, a plaintiff must allege facts of misconduct constituting sexual harassment––i.e., “harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”7 The Sixth Circuit again affirmed the lower court’s dismissal of this cause of action, finding that the plaintiff’s allegation of one incident of non-consensual kissing against a female student—while unacceptable—did not rise to the level required to plead a claim under a deliberate indifference theory.
The Court Found Plaintiff Had Sufficiently Pled an “Erroneous Outcome” Under Title IX
In order to bring an erroneous outcome claim under Title IX, a party must allege facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding and a particularized causal connection between the flawed outcome and gender bias.8 The district court determined Doe failed to establish the requisite causal connection by alleging external pressure from government and organizations, as well as statistical evidence ostensibly showing gender discrimination in pursuing sexual misconduct claims. In reviewing this decision, the Sixth Circuit determined that, at the pleading stage, a plaintiff need only establish “circumstantial evidence of gender discrimination.” Taking all of the allegations into consideration, while not accepting the evidence as uncontroverted truth, the Sixth Circuit found the plaintiff had pled sufficient facts to establish the requisite causal connection for his erroneous outcome claim and reversed the lower court’s order.
The Sixth Circuit’s Analysis of the Constitutional Claims
The Court Found a Plausible Violation of Doe’s Equal Protection Rights
The initial complaint alleged that the university’s pursuit of disciplinary action against Doe was because he was a man, while it did not pursue disciplinary action against the female complainant because she was a woman. Specifically, Doe alleged that both he and the female student were unable to consent, but further claimed the university only “chose to pursue disciplinary action against” him. The court held this allegation was sufficient to plead a violation of the plaintiff’s equal protection rights even though he had never initiated a formal complaint against the female student.
The Court Found a Plausible Violation of Doe's Procedural Due Process Rights
Piggybacking on its erroneous outcome analysis, the court also found that the plaintiff’s claim that his procedural due process rights had been violated were sufficient to survive a motion to dismiss. The gravamen of the due process claim was that one of the members of the Administrative Hearing panel was biased against him. Doe alleged that the hearing member improperly held “dual roles” of investigator, prosecutor and judge. The court found that holding dual roles does not per se disqualify an individual from being an impartial arbiter, but the court did consider it as a factor in determining that Doe had sufficiently alleged that the hearing member was not impartial.
The tipping point for the court’s analysis was that the hearing member had also allegedly made specific statements during the hearing indicating that she had predetermined Doe’s guilt. This fact, together with the hearing member’s dual role, was sufficient to sustain Doe’s claim for violation of his procedural due process rights at the motion to dismiss phase.
Considering the split in approaches between the Sixth and Second Circuits, it is plain that the law is still developing on multiple facets of gender discrimination claims alleging violations of Title IX, the Equal Protection Clause, and the Due Process Clause. The Sixth Circuit’s approach in Miami University is of particular note not only because it may expose universities to liability if they fail to investigate both parties involved in a sexual assault case—in circumstances where the individual accused of sexual assault was too intoxicated to consent—but also because it may have a chilling effect on the reporting of sexual misconduct, since the victim of an assault may likewise face an investigation. Given this dynamic state of the law, we advise that educational institutions continue to monitor recent decisions construing Title IX and Constitutional rights to ensure that their disciplinary procedures comply with applicable legal standards.